The crackdown begins in July, ISPs hope for bigger profits by serving less bandwidth

If you're a customer of Time Warner Cable (TWC), Comcast Corp. (CMCSA), or Verizon Wireless, a joint venture between Verizon Communications Inc. (VZ) and Vodafone Group Plc. (LON:VOD), and you happen to also be a pirate of copyrighted content, you may soon find yourself warned or even have your service terminated.

I. Your ISP is Out to Get You, Pirate!

The aforementioned internet service providers (ISPs) have volunteered to be part of a fledgling effort by the Recording Industry Association of America (RIAA). RIAA CEO and chairman Cary Sherman announced the news during his speech to a panel of publishers on Wed.

Traditionally, the RIAA's anti-filesharing efforts have consisted of extorting alleged filesharers under the threat of legal action. In some cases the individuals were clearly wrongly targeted, and the approach was highly technically unsound, given that an IP address did not equate to a personal identity. Thus the approach was roundly criticized.

Fritz Attaway, executive vice president of the Motion Picture Association of America (left) and Cary Sherman of the Recording Industry Association of America, on Wed. announced their orgs. new partnership with top ISPs to kill piracy. [Image Source: Greg Sandoval/CNET]

While the new methodology shares some of the same dangers of false accusations, it will at least be less fiscally damaging to the accused. Supporters plug the program, saying that the only way to truly stop piracy is to kill it at the gate -- the user's internet connection.

That said, significant technical questions surround how ISPs will be able to determine real time streams of copyrighted content being transferred over P2P versus legal P2P traffic.

II. Why are the ISPs Cooperating?

One of the big questions that may be hot on the minds of many is why the ISPs would cooperate with the RIAA scheme? Well, for a long time many ISPs were wary of cutting off paying customers.

But gradually some ISPs have come to embrace the RIAA's perspective.

It's possible that the RIAA has promised its partners some sort of payments to help them set up their enforcement systems. After all, it was willing to pay $64M between 2006 and 2008 to win $1.4M USD from individual pirates.

Money -- either direct payments from the RIAA or the suggestion of bigger profits via serving less bandwidth -- has convinced the ISPs to turn on their filesharing customers.[Image Source: Flickr/Exif]

Also, the ISPs may believe that while they may have to cut a handful of customers, the majority will simply stop sharing after warnings. Ultimately this would mean that the ISPs customers would be paying the same amount for their service, but would likely be consuming far less bandwidth (as filesharing is very data hungry). Thus the ISPs ultimately may hope to crank up their profits by threatening their customers into quitting their pirate ways.

Of course not all ISPs are likely onboard. Implementation of the scheme will likely be expensive, though it may yield a net payoff, depending on how well it works at discouraging piracy. Smaller ISPs -- such as municipal Wi-Fi, small carriers, and other players -- may find it infeasible to adopt a similar scheme. After all, Comcast, TWC, and Verizon are some of the biggest ISPs in America.

Ultimately the RIAA's goal, though, will be to try to force (via lobbying the government) all ISPs to join the effort, regardless of financial feasibility. This ultimately represents a big financial risk to small ISPs, as the current atmosphere in Washington D.C. is very pro-RIAA, thanks to their generous bribes campaign contributions.

III. When Will the Plan Arrive?

According to CEO Sherman, ISPs will begin to implement the plan on July 12. Thus far Comcast, Verizon Wireless, and Time Warner Cable are the only confirmed participants.

It may take up to a year for the monitoring system to be fully in place and for threats to begin, he states, commenting, "Each ISP has to develop their infrastructure for automating the system. [This is needed] for establishing the database so they can keep track of repeat infringers, so they know that this is the first notice or the third notice. Every ISP has to do it differently depending on the architecture of its particular network. Some are nearing completion and others are a little further from completion."

According to the RIAA, the threats to filesharers will operate on the "graduated response" principle (which elsewhere has been referred to as a "three strikes" plan or President Obama's proposed "six strikes" plan). On the first incident customers will be sent a warning email, which requests they confirm that they received the notice.

If the system detects them to be sharing more times, they will face increasing action, including possible cancellation of their service or throttling. Given how contract law works in America, it is possible that customers in yearly contracts could be obligated to continue to pay for the services they are no longer receiving.

The big question, with respect to how much backlash the proposal will create, will be accuracy.

If Comcast, et al. start sending threats to non-pirate customers (for example World of Warcraft patches are delivered via P2P and many artists distribute free -- and legal -- music via P2P as a promotional tool), it could turn into a massive embarrassment.

The black mark of a false positive could lead subscribers to abandon an ISP in mass.

In that regard the ISPs are playing with fire, to an extent, and could get burned. However, the potential damage may be mitigated by the fact that these same ISPs enjoy a collective monopoly on high-speeds services in many regions. In other words, even if they're all operating in an abusive manner, customers may have no other options in the area.

Still customers have a powerful equalizer in the class action lawsuit. If the ISPs do act abusively, regardless of competition or the lack thereof, users could punish them if they can find a sympathetic court that's willing to give them a fair trial.

The RIAA and MPAA are selling them on the promise of reduced bandwidth and higher profits. However, the ISPs should beware this deal with the devil -- if they botch their new job as "copyright cops", it could cost them dearly.

That's an easy one. Because two of the three have strong ties back into the media (music/movie/etc.) industry. And all of them are or want to be content providers of the same. So, of course they're going to roll over to the RIAA.

Comcast is trying to sell its pay-per-view and on-demand services, and I bet Comcast makes more money from its TV service than it does from internet service. So of course they want to limit pirated downloads.

If the ISP's cared about piracy this much, they would have started regulating it on their own years ago. They could stop most of it at the source if they wanted it to, and quite easily.

No, the timing of this just can't be coincidence. Someone got to them and made them an offer they couldn't refuse. It's the classic case of "do you want to do this the easy way, or the hard way?"

This is what happens when too much regulatory and influential power is exerted on our industries. If the ISP's stood up against it, things would get too difficult for them. They could even be shut down or dragged into courts over and over again.

Which, as you might recall, has already happened in the past on a few occasions where they refused to provide IP addresses etc etc.

I'd say they are cooperating because of huge profit potential from monitoring customers.

So how do they decide if you are downloading something illegal? By classifying all your traffic they not only could spot illegal downloading, but also gain a gigantic data pool that will make Googles new privacy policy look like a McDonald's notice. All of this legal for them to track/compile too.

You know what's really scary about all of this? This means they will be tracking EVERYTHING I download...EVERYTHING. This also means it's a click away from the good ole government to control our content or control what we download....F THIS.

It also helps that the risk of a 'possible backlash' of customers leaving in droves is minimal. Let's be realistic here, where I live my choices for internet are Comcast (who I hate with almost every fiber of my being) and ATT (who I hate with every fiber of my being). I don't have comcast because I think their service is good, I'm with them because I like having internet and those are my only viable options (and currently I hate ATT more).

Pay like $50/yr for an encrypted VPN service. The ISP will not be able to see what you are downloading or uploading. They can still reprimand you for bandwidth abuse, but at least you don't have to worry about them monitoring your content - legal or otherwise.

The guys on the street selling the movies from their backpack are going to get a lot more business. Maybe if the Movie/Videogame industry didn't price fix their products and priced the crappy movies/games lower (99% of them) more people would buy the real thing.

You hear that Hollywood? I am not buying your crap whether you do this or not. I'll spend my money on items that are actually good.

Any content worth buying I buy. Though I've been burned far to often in the past buying a movie/music that looked to be good, only to have it be terrible. For movies, I now just watch whatever is on netflix/Amazon, and buy artists music that I hear and like on my paid Pandora subscription.

If poor movies were priced properly, they'd end up selling more copies and end up with higher profit.

"The more you tighten your grip... the more star systems will slip through your fingers"

seems appropriate here.

This will not stop pirates who still wish pirate. So long as there are large or unlimited data caps, internet piracy of media will never be crushed. ISPs in Canada send letters to households caught pirating. Every person I know who has received one has, instead of ceasing their activity, just found out how they may avoid being caught in the future.

Currently, the RIAA/MPAA should just thank their lucky stars that the majority of people are technologically incompetent. They should use this time to get digital distribution nailed down at competitive pricing. In my opinion, the trick to killing piracy is by making the content people want easier to access than if they just pirated it. This is why DRM has been the biggest anti-piracy effort failure of all. I think many TV shows have come a long way in this area, offering full episodes for free (ad supported) on their website the day after the show airs on TV.

Otherwise, they should focus on making good products and on consumers that would pay to enjoy said good products. Chasing after pirates is akin to a dog chasing its tail - a little funny to watch, but overall a futile effort.

I'll leave my computers on and watch youtube videos all day in the highest resolution possible. Start downloading and seeding a ton of legit torrents. Everyone should do the this. They want to monitor traffic, lets give them something to monitor.

Is it just Verizon Wireless that's doing this, or is it Verizon and Verizon Wireless? I saw somewhere else that just said "Verizon", which I assumed meant the land-line provider and not the cell carrier.

This is a win win for the providers. They get to charge their customers extra for "security upgrades" used to police those same customers. If a customer is found to be in violation of the Terms of Service, the provider can lower/limit/or cut off service and still require payment if a commitment was signed by the customer. The only way that we as consumers can be heard is to speak with our wallets, stop going to the movies, stop renting disks and stop buying music. Boycott all the media!

Facilitating piracy is a crime so the ISPs have little choice. Few people other than pirates support piracy. Expect more legislation and stiffer punishment for those who infringe on copyright protected works.

The ISPs don't facilitate online piracy any more than a city facilitates prostitution by providing street corners for hos to hang out on.

Ultimately the issue falls to whether or not someone's privacy is being violated without probable cause...and whether or not they start accusing non-pirates of doing something illegal.

The problem, as noted in the article, is that you really can't tell what a user is doing (in terms of being OK or piracy). So, you see someone on your network downloading a torrent. Piracy? Maybe. Might be completely legit...you don't know. See someone downloading an .mp3? Might be that the artist posted the file on their own website, free for all to take...or it might be that a 12-year old ripped his latest Miley Cyrus CD and is illegally sharing it.

...the problem is that you really don't know. Certainly not without some invasion of privacy, and to do such a thing (legally) requires probable cause. The (very valid) argument to be made is that noticing a .mp3 going across your wires isn't probable cause.

You're looking at this from the angle of a criminal trial or police action. Probable cause won't apply here because just the suspicious nature of the activity will be enough to warrant reporting you to the RIAA where then their legal team can go to work on ruining your life.

Without court (TORT) reform, they have nothing to lose by accusing someone of piracy and suing them without concrete proof or even solid evidence.

ISP's aren't stupid. They can figure out if you're pirating or not for the most part. But in this case, unfortunately, just "maybe pirating" will be close enough for them. At the ISP level, you don't really have much "privacy" in this context because everything you're doing goes directly through their hardware. Sure there are some legitimate uses for torrents. Torrenting 200+ gigs a month every month? I think they know you're a pirate lol.

This is why I have a Usenet account. Torrents are just too risky, they go out in the clear! Might as well hang a flag at your house that says "AHOY MATEY!".

Well for one thing in the U.S, usenet servers have been under 'common carrier' laws and provisions for a VERY long time, just like the telcos.

By saying that, they are completely immune to being sued, although there is some question as to DMCA provisions which may been found by the courts as going against the common carrier laws.

In other words, just like the telcos can't be sued for 'carrying' 'perhaps' illegal messages (up to and including bomb threats, for instance), they can't be held accountable for anything else either.

Now for the end user there are other key differences that make the Usenet more safe than torrenting or other types of p2p "file sharing". You can Google them if you want, but basically due to the "binary" download format of Usenet, there's just absolutely NO WAY for anyone to tell what you are downloading. Even if they break the SSL encryption. Also with usenet you NEVER "share" files or allow anyone to view your share folder. There IS no share folder anyway.

However, under certain circumstances, it may also be a federal crime. Acopyright infringement is subject to criminal prosecution if infringementis willful and for purposes of commercial advantage or private financialgain. 17 U.S.C. 506(a). If the offense consists of the reproduction ordistribution, during any 180-day period, of 10 or more copies having aretail value of more than $2,500, the offense is a felony; otherwise, theoffense is a misdemeanor. 18 U.S.C. 2319.

As a side note, although 18 U.S.C. 2319 purports to prescribe thepenalties for criminal infringement, all crimes covered by Title 18 havetheir penalties determined by the U.S. Sentencing Guidelines, anotherpart of Title 18.